Coronavirus (COVID-19) Essentials for the Municipal Employer Johanna Zelman , Office Managing Partner – Hartford Office Michael C. Harrington , Partner – Hartford Office » Wednesday, March 25, 2020
Presenters: Johanna G. Zelman Office Managing Partner Hartford Office 860.740.1361 jzelman@fordharrison.com Michael C. Harrington Partner Hartford Office 860.740.1366 mharrington@fordharrison.com 2
Agenda • Overview • Families First Coronavirus Response Act • Employment-related issues during the pandemic • Q&A 3
Overview • First case reported • in Wuhan, China on December 31, 2019 • in U.S. on January 22, 2020 • in Connecticut on March 8, 2020 • On March 11, 2020, WHO declared COVID-19 a pandemic • Currently cases have been reported in all 50 U.S. states and territories 4
Total US cases: ~55,000 Total NY cases: >25,000 Total CT cases: 618 (as of 3/24/2020) Source: NY Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us- cases.html (March 24, 2020, 9:49 a.m.) 5
The Families First Coronavirus Response Act (Public Law No. 116-126) 6
• Signed into law by President Donald Trump on March 18, 2020 • Becomes effective on April 1, 2020 • Contains 2 provisions relevant to employment that remain effective through December 31, 2020 • Emergency Paid Sick Leave Act (“EPSLA”) • Emergency Family and Medical Leave Act (“eFMLA”) • U.S. Department of Labor has yet to release official guidance in interpreting either provision, but has offered some helpful hints. 7
Emergency Paid Sick Leave Act • Applies to all public sector employers with 1 or more employees • Employees are immediately eligible for leave, no matter how long employed. • Leave only available to the extent the employee cannot telecommute or work from home (“WFH”) • Exception : Employers of (1) Health Care Providers or (2) Emergency Responders (to be discussed later) NOTE: In private sector, EPSLA applies only to those employers with fewer than 500 employees. 8
JGZ1 Reasons for EPSLA 1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19. 2. Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. 3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis. 4. Employee is caring for an individual who is subject to a quarantine or isolation order or has been advised by a health care provider to self-quarantine. 5. Employee is caring for a son or daughter because the child’s school or place of care has been closed or the child’s childcare is unavailable due to COVID 19 precautions. 6. Employee is experiencing any other substantially similar condition. NOTE: EPSLA does not define “quarantine or isolation order.” The CDC, however, does explain the explicit authority for such. It is our opinion that a shelter in place or stay at home order, such as issued by Governor Lamont, does not qualify as an official quarantine or isolation order that triggers EPSLA. 9
Slide 9 JGZ1 Johanna G. Zelman, 3/25/2020
Amount of Leave • A full-time employee is entitled to 2 weeks (maximum 80 hours) of paid leave. • A part-time employee is entitled to the number of hours equal to the average number of hours worked over a two week period • Example: An employee who works an average of 20 hours per week would be entitled to 40 hours of paid leave • If time off is for self-care (reasons 1, 2 and 3), employees must be compensated at their regular rate of pay, capped at $511 per day or $5,110 total per employee • If time off is taken to care for someone else or a child who is not in school (reasons 4, 5 and 6), employees must be compensated at 2/3 rd of regular rate of pay, capped at $200/day or $2,000 total per employee • No carryover • May not require the employee to find a replacement before allowing the employee to take paid time 10
• Employee may first use the paid sick time before other leave. • Employer can not require Employee to use other paid leave provided by the Employer to the Employee before the Employee uses the paid sick time. • This leave can not run concurrently with other accrued leave • Failure to provide leave is an FLSA violation • Fines, imprisonment up to 6 months • Amount of leave not paid • Liquidated damages for willful violations • Attorneys’ fees • Retaliation Prohibited • Cannot discharge, discipline or in any other manner discrimination against an employee who takes leave or who files a complaint 11
FAQs – Emergency Paid Sick Leave Act 12
Day 1 FAQs – Paid Sick Leave • The Secretary of Labor is supposed to provide guidance • Can employees use this paid sick leave for non-coronavirus illnesses or injuries? • Can paid sick leave be taken intermittently? • Can we require a doctor’s note upon return to work? • Do I have to pay out unused leave if I have to terminate the employee or I have to close my business? 13
Emergency Family and Medical Leave Act IMPORTANT NOTE: THIS IS AN AMENDMENT TO THE FMLA. THUS, UNLESS OTHERWISE NOTED, ALL FMLA REQUIREMENTS ARE APPLICABLE TO eFMLA 14
eFMLA Eligibilty • Applies to all public sector employers , irrespective of number of employees • Provides for paid leave • Available only for employees who: 1. Have been employed a minimum of 30 days (including those working part time); 2. Cannot WFH; AND 3. Must be home to care for a minor child whose school has closed because of COVID-19 • Healthcare and emergency responder exceptions apply (to be explained) NOTE: Only private employers with less than 500 employees are subject to eFMLA. 15
eFMLA Leave Entitlement • Up to 12 weeks • First 10 days (2 weeks) are unpaid • May substitute EPSLA for this unpaid period • May substitute accrued leave (if not using EPSLA) NOTE: An employer cannot require use of accrued time before EPSLA. Therefore, you may only use accrued leave if the employee chooses. An employee who chooses to use accrued leave before EPSLA would be entitled to 14 weeks combined between eFMLA and EPSLA. Thus, it is recommended that EPSLA be used first whenever possible. • 10 weeks paid Must be paid at least 2/3 rd salary, capped at $200 per day, $2000 total • May require use of accrued leave for remaining 1/3 rd of salary • • Based on current interpretation of eFMLA and FMLA, may require accrued leave to run concurrently with 10 weeks of eFMLA if the employer’s regular FMLA policy otherwise permits it. 16
Job Restoration • FMLA’s standard job restoration requirements will apply to employers with 25 or more employees. • For employers with less than 25 employees, job restoration is not required if all the following conditions are met: • Employee takes E-FMLA. • Employee’s position does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by a public health emergency during the period of leave. • Employer makes reasonable efforts to restore the employee to an equivalent position. • If no equivalent positions are available at the time the employee tries to return from leave, the employer must attempt to contact the employee if an equivalent position becomes available in the next year. 17
FAQs - eFMLA • How is son or daughter defined? • Can leave be taken intermittently? • Does the employee need to request eFMLA? • What about payment of insurance premiums while on leave? • What documentation can we require? • What if the employee has already exhausted their FMLA or has less than 12 weeks remaining? Remember, this is an amendment to the FMLA, which provides an additional reason for FMLA leave. As such, existing FMLA Guidance may be helpful. 18
Healthcare worker and Emergency Responder Exemption • Available for both EPSLA and eFMLA • Does not exempt all employees; only those who are healthcare workers or emergency responders • It is the employer’s chose to take the exemption • “Emergency responder” is not defined. However, FLSA defines “first responder” as: “police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; and other similar work.” • “Heathcare worker” has the same meaning as it does under the FMLA 19
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